Adkins v. United States

19 Cl. Ct. 240, 1990 U.S. Claims LEXIS 7, 1990 WL 2140
CourtUnited States Court of Claims
DecidedJanuary 12, 1990
DocketNos. 313-77, 363-80C
StatusPublished

This text of 19 Cl. Ct. 240 (Adkins v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adkins v. United States, 19 Cl. Ct. 240, 1990 U.S. Claims LEXIS 7, 1990 WL 2140 (cc 1990).

Opinion

ORDER

HORN, Judge.

This Order is directed to Jeremiah Black-bum, the sole remaining plaintiff, of a total of 690 original plaintiffs, in the above-captioned consolidated cases, of Rose M. Adkins, et al. and Bobby W. Adkins, et al., Nos. 313-77 and 363-80C, respectively.

The case of Rose M. Adkins, et al., was originally filed with this court’s predecessor, the United States Court of Claims on June 3, 1977 and assigned to Judge Wood. After a long period of very little activity, the case of Rose M. Adkins, et al., No. 313-77 was consolidated with the case of Bobby W. Adkins, et al., No. 363-80C, on February 13,1981. At that time, 690 plaintiffs, who were wage grade employees at the Air Force’s Aerospace Guidance and Meteorology Center in Newark, Ohio, sought environmental differential pay for injuries, allegedly caused by exposure to certain working conditions at the Center.

Since the case was filed, numerous Motions for Enlargements of Time, several Summary Judgment Motions on different issues, as well as Replies, and Responses, thereto, have been filed. On April 11, 1983, defendant’s first Motion for Summary Judgment was filed. After multiple related filings, on November 8, 1983, Defendant’s Motion for Summary Judgment was denied.

On October 1, 1984, Judge Wood dismissed the claims of 311 plaintiffs for failure of each such plaintiff to prosecute their case.

Defendant's second Motion for Summary Judgment was filed on November 30, 1984. Plaintiffs’ counsel filed an Opposition on April 22, 1985, to which defendant filed a Reply on July 10, 1985. Plaintiffs’ Supplemental Memorandum in Opposition to Defendant’s Motion was filed on October 1, 1986, and defendant filed a response on October 3, 1986, to which plaintiffs’ Reply was filed on October 16, 1986. On August 8, 1986, this case was reassigned to this judge, upon the retirement of Judge Wood. Then, on September 4, 1986, defendant filed yet another Summary Judgment Motion and plaintiffs filed their opposition thereto on October 10, 1986.

On December 12, 1986, proceedings in this consolidated case were suspended, pursuant to defendant’s Motion to Suspend, Pending a decision by the United States Court of Appeals for the Federal Circuit in Harris v. United States, 841 F.2d 1097 (Fed.Cir.1988).

On August 4, 1988, plaintiffs’ counsel filed a Motion for Leave to Withdraw as Attorney of Record for Certain Plaintiffs. Kevin M. Grile, who, at that time represented each of the plaintiffs in the case, was staff counsel for the American Federa[241]*241tion of Government Employees (AFGE). In early May 1988, Mr. Grile had sent a mailing to all plaintiffs or to the estate representative substituted for deceased plaintiffs, which represented the position of plaintiffs’ counsel as well as that of his employer, the American Federation of Government Employees, “that the current law suit should be withdrawn.” The mailing included a “Summary Sheet on Need To Withdraw EDP Law Suit,” a four page memo setting forth Mr. Grile’s analysis of the plaintiffs’ claims in light of Harris v. United States, 841 F.2d 1097 (Fed.Cir.1988) and a form on which each plaintiff could indicate his/her consent or express nonconsent to withdrawal of their name. Plaintiffs’ attorney used the following categories to delineate the responses: (1) plaintiffs who have expressly stated their non-consent to dismissal of their EDP claims; (2) plaintiffs who have not responded to counsel’s request for consent or nonconsent, but the original mailings were not returned to counsel; (3) plaintiffs who had moved without giving counsel his/her new address, but for whom counsel was able to obtain a new address and mailed another analysis and request for consent/nonconsent to the new address without having the mailings returned; (4) plaintiffs who have moved without giving counsel his/her new home address and for whom counsel has been unable to obtain current addresses; (5) plaintiffs who have not responded to counsel’s request for consent/nonconsent ’ to dismissal, but whom [sic] counsel has been informed have passed away. Moreover, the appendices to plaintiffs Motion for Leave to Withdraw as Attorney of Record for Certain Plaintiffs, filed on August 4, 1988, categorized the plaintiffs according to the factors listed above. Plaintiffs’ counsel’s efforts to contact the plaintiffs continued following the initial Motion for Leave to Withdraw.

After considering numerous motions filed by both the defendant and the plaintiffs, each at different times, asking to both suspend and to lift the suspension of proceedings in this case, the court lifted the suspension on August 12, 1988.

On September 8, 1988, plaintiffs’ counsel filed a Motion to Further Amend Motion for Leave to Withdraw, which contained new information about some plaintiffs who previously either would not authorize withdrawal of their claims or who had not communicated their consent or non-consent to withdrawal.

At a status conference held on September 15, 1988, based on the information offered by counsel for both sides, the court determined that it did not have sufficient information to properly decide whether dismissal of a particular plaintiff’s case was appropriate. The court also determined that it would not be warranted in relieving Mr. Grile as counsel until the status of each plaintiff could be determined. The court, therefore, inquired of counsel as to the proper method of determining the status of the remaining claims of each plaintiff. In response to the court’s inquiry, the plaintiffs’ attorney suggested that he prepare a chart with each plaintiff listed in the left column and a succeeding column indicating the dates of the claims still pending before the court. Subsequently, on September 19,1988, due to plaintiffs’ counsel’s filing of the Motion to Withdraw as Attorney of Record for Certain Plaintiffs, and in order to resolve the status of each plaintiff’s claim as a result of Harris v. United States, supra, this court ordered the submission of a chart to include at least the following information with respect to each plaintiff: (1) name of plaintiff; (2) type of claim; (3) hiring date; (4) date of termination or death; and (5) applicable date of collective bargaining agreements.1 In addition, the court scheduled oral argument for October 24,1988, on the applicability of the Harris, supra, decision to the claims at issue in the above captioned cases.

On September 26, 1988, before the date already scheduled for the oral argument, at which counsel were to address the legal applicability to the cases before this court [242]*242of the Harris, supra decision, the parties filed a Joint Stipulation of Partial Dismissal, in which they cited Harris v. United States, supra, as the grounds for dismissal, and requested the dismissal of all claims governed by Harris. In the motion, however, the parties failed to specifically identify, by name or by plaintiff number, any of the 393 plaintiffs whose particular claims they believed should be dismissed. Furthermore, as previously noted, the discussions at the September 15 status conference showed that without further consideration, counsel for neither party could identify sufficiently which claims, if any, should survive, even if those claims based on the Harris, supra

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Bluebook (online)
19 Cl. Ct. 240, 1990 U.S. Claims LEXIS 7, 1990 WL 2140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adkins-v-united-states-cc-1990.